La Trobe University academic suspension again highlights social media perils for employees - Employee Rights/ Labour Relations

On 1 June 2016, La Trobe University (La Trobe) suspended academic Roz Ward from her position, over a private Facebook post in which she criticised the Australian flag.

The case has some similarities with SBS's sacking last year of sports journalist, Scott McIntyre, who had tweeted highly critical comments of Australia's commemoration of Anzac Day.¹

The disciplinary action taken against Ms Ward again raises the question: to what extent can employers exercise control over the social media activity of their employees?

WHAT HAPPENED?

Ms Ward was a somewhat controversial figure even before her suspension by La Trobe. She is the co-founder of the Safe Schools Coalition, which runs anti-homophobia and anti-bullying programs in schools but has attracted the ire of many conservative politicians and commentators.

La Trobe's decision to stand Ms Ward down from her employment reportedly followed the leaking to the media of a private Facebook post, which included the following statement:

Now we just need to get rid of the racist Australian flag on top of state parliament and get a red one up there and my work is done.

This comment was made in reference to the elevation of a rainbow flag at the Victorian Parliament, following an apology by Premier Daniel Andrews for the application of past laws outlawing homosexuality.

Ms Ward is based in La Trobe's Australian Research Centre in Sex, Health and Society which oversees the running of the Safe Schools Program. The University alleged that she engaged in serious misconduct through the Facebook post, including by:

undermining public confidence in the Safe Schools Program and in herself as a researcher associated with the Program;
damaging the Program's reputation and aligning it with unrelated views;
requiring members of the Victorian Government, and other La Trobe staff, to take up their time defending the Program rather than being positive advocates for it;
drawing her colleagues into negative publicity around the Program, impacting their ability to undertake research in a safe environment.

However, only two days after her suspension, the University announced that Ms Ward would be returned to her position and that all allegations against her were withdrawn. The incident had triggered significant media attention, and more than 10,000 signatories to an online petition supporting Ms Ward's reinstatement.

LEGAL ISSUES RAISED BY THE WARD CASE

Prior to La Trobe's decision to end the misconduct investigation, the National Tertiary Education Union (NTEU) was weighing up a number of legal options on behalf of Ms Ward. In particular, the union was considering an action under the general protections provisions in the Fair Work Act 2009 (Cth), on the basis that the suspension of Ms Ward constituted 'adverse action' on the prohibited ground of her voicing of a political opinion (in breach of section 351).

This formed the basis of Scott McIntyre's initial legal claim against SBS.² However he was later forced to abandon that claim, when it became clear that the section 351 prohibition does not apply if the adverse action in question is 'not unlawful under any anti-discrimination law in force in the place where the action is taken' (section 351(2)(a)). As discrimination on the basis of political opinion is not unlawful under NSW anti-discrimination legislation, where McIntyre was employed, he could not argue a breach of section 351.³

That barrier was not present in Ms Ward's case: political opinion is a prohibited ground of employment discrimination in Victoria (under section 6(k) of the Equal Opportunity Act 2010 (Vic)).

Other relevant factors in the determination of any general protections claim she may have pursued would have included:

whether Ms Ward's Facebook comment, criticising the Australian flag as racist and advocating a Marxist/socialist position (the reference to the 'red flag'), constituted 'political opinion' of the kind protected by section 351;
if so, whether her right to assert her political opinion operated subject to any obligations under her employment contract, the La Trobe enterprise agreement or University policies (for example in the McIntyre case, it was alleged that he had breached SBS's policy on social media activity by employees).

The academic context of Ms Ward's employment would also have been significant. Her supporters, including the NTEU, argued that it is part of the role of academics to engage in public debates in society; and that academic freedom is stifled if individual employees fear retribution from universities when they speak out on controversial issues.

In fact, the La Trobe agreement (like many enterprise agreements at Australian universities) expressly allows academics to contribute to public debate on issues relevant to their expertise – and even to 'express unpopular or controversial views' (as long as these do not involve harassment, vilification or intimidation of others).

WHAT DOES THIS MEAN FOR EMPLOYERS?

This episode is another important reminder to employers that social media use – and misuse – by employees must be managed carefully and pro-actively.

The capacity to exercise control over what your employees say on social media, and to limit their ability to make comments which are detrimental to business interests, will be enhanced if your organisation has a written policy on social media activity.

This policy should spell out the obligations that employees must adhere to: both when at work, and when using social media 'privately' (but in a way that could still negatively impact the employer).

The policy should also clearly identify the consequences of social media misuse (e.g. suspension, disciplinary action, dismissal); and be accompanied by regular training on the "do's and dont's" of social media for employees.

Footnotes

¹ See: Can an employee be sacked for tweeting "political opinions"?

²See: Can an employee be sacked for tweeting "political opinions"?

³ See: McIntyre v SBS social media dismissal: FWC gives green light for unlawful termination claim - McIntyre's subsequent unlawful termination claim was ultimately settled.

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